News Story

Nessel: AG opinion premature, but MiLEAP constitutional on its face

Facial review does not preclude future action, Nessel writes

Attorney General Dana Nessel on Monday said it was premature to issue a legal opinion on whether a second Michigan education department is constitutional. But based on what Nessel knows now, she said, the department is constitutional on its face.

“As a result” of the order not yet taking effect, “the only review that can be conducted is a facial one, and such a review leads to a clear answer as to the constitutionality of the (executive order),” Nessel wrote.

Executive Order 2023-6, issued by Gov. Gretchen Whitmer on July 11, takes effect Dec. 1.

Read it for yourself: Executive Order 2023-6 

Nessel’s Aug. 28 letter was written to State Superintendent Michael Rice, in response to Rice’s request for an opinion. State officials can request attorney general’s opinions and use those opinions as the basis for policy. For instance, the Michigan Treasury moved forward with a 4.25% tax rate for 2024, rather than the 4.05% tax rate of 2023, because an attorney general’s opinion said the tax cut was event-driven, not permanent.

In this case, Nessel wrote a letter, not a legal opinion.

Earlier this month, the State Board of Education asked Rice to seek an attorney general’s opinion on the legality of the Michigan Department of Lifelong Education, Advancement and Potential. Whitmer created the department by executive order. The state board and state superintendent then sought what they dubbed “constitutional clarity” from Nessel.

But Nessel said it was “premature” to offer an opinion.

Nessel’s letter does not preclude future action. But it would have to be based on actual events. Citing a 1999 case, Straus v. Governor of Michigan, Nessel wrote:

The standard for finding an executive order unconstitutional on its face is a high one. Specifically, an executive order is unconstitutional on its face only when “no set of circumstances exists under which the executive order would be valid. The fact that the executive order might operate unconstitutionally, under some conceivable set of circumstances is insufficient.”

That paragraph ends with Nessel citing Whitmer’s executive order. Nessel referenced the shared vision”of MiLEAP and the Michigan Department of Education.

In the order, Gov. Gretchen Whitmer affirms the constitutional authority of the state board and says MiLEAP does not diminish it.

Only after implementation, with facts and policies on the record, could Nessel issue an attorney general’s opinion, she said.

“It is at that point, where a specific set of facts exists, that an opinion may be appropriate,” Nessel wrote.

Michigan Capitol Confidential is the news source produced by the Mackinac Center for Public Policy. Michigan Capitol Confidential reports with a free-market news perspective.